|Pages 118-142||Pages 168-181|
| AT A
SUMMONED TO BE HELD AT
|Hugh Drysdale, Esq. Governor.|
An Act for laying a duty on Liquors.
|[From edit. 1733, p. 350.]|
|I. MAY it please your most excellent majesty, we your Majesty's most dutiful and loial subjects, the burgesses of this your Majesty's most antient colony and dominion of Virginia, now met in assembly, taking into our consideration the expedience of raising a competent revenue, for defraying such expences of your Majesty's government here, as must otherwise be discharged by a poll-tax, which hath frequently been very grievous and burthensome to the subjects of the said colony, and occasioned great discontents and uneasiness among them; and being likewise piously affected to the furtherance of the college of William and Mary, founded in this colony, by your Majesty's roial predecessors king William and queen Mary, of blessed memory, for the education of our youth in the liberal arts and sciences, and propataging the gospel among the western Indians; the progress of which good work, by a long series of misfortunes and accidents, and by the decay of the revenue thereof, hath been so much obstructed, that the charitable design of the founders hath not hitherto been fulfilled: And lest it should be a reproach|
|to us not to contribute our assistance to the perfecting a work of such importance to us and our posterity, have given and granted to your Majesty, the several duties herein after mentioned; and do most humbly beseech your Majesty, that it may be enacted.|
|II. And be it enacted by the Lieut. Governor, Council and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That for every gallon of rum, brandy, and other distilled spirits; and for every gallon of wine, which from and after the tenth day of June next, shall be imported or brought into this colony and dominion, from any port or place whatsoever, the duty or custom of three pence, shall be paid by the owner or importer of the same, for and during the term of five years: And that one other duty, of one penny for every gallon of the said liquors, which, from and after the said tenth day of June, shall be imported or brought into this colony, as aforesaid, shall be paid by the owner or importer thereof, for and during the term of twenty-one years from thence next following.|| Duty on wine and spirits imported. |
|III. And be it further enacted, That every gallon of cider, beer, or ale, which, from and after the said tenth day of June, shall be imported or brought into this colony and dominion, from any port or place whatsoever, the duty or custom of one penny, shall be paid by the owner or importer of the same, for and during the term of five years.||Duty on cider beer and ale.|
|IV. Provided nevertheless, and it is hereby enacted and declared, That no duty or custom whatsoever, shall be required or paid for any of the liquors before enumerated, that shall come directly from Great-Britain; but that all such liquors shall remain and continue exempt and free from any imposition, duty or custom, levied or required by this act, as if this act had never been made.||Exception as to liquors imported directly from Great-Britain.|
|V. And be it further enacted, That no liquors whatsoever, liable to a duty or custom, by virtue of this act, shall be landed, put on shore, or any other way delivered out of the ship or vessel importing the same, before due entry be made thereof, with the collector of the duties, in the port or place where the same shall be imported, or before the duty due and paiable for the same, by virtue of this act, shall be fully satisfied, and a warrant had, under the hand of the said collector, for||Entry how to be made.|
|landing or delivery thereof: and that all liquors landed, put on shore, or delivered, contrary to the directions, and true intent and meaning of this act; or the value thereof, shall be forfeited and lost; and shall and may be recovered of the importers or owners of the same.|
Penalty for landing without entry.
|VI. And be it further enacted, That no liquors liable to any of the said duties, which shall be imported or brought into this colony, by any person or persons whatsoever, shall be landed, or put on shore, until due entry be made thereof, with the collector of the duties upon liquors, in such port or place, and a true account be given of the gallons every cask doth contain, upon oath, upon pain of forfeiting double the value of the liquors so landed, or put on shore.|
|VII. And be it further enacted, That the master or purser of every ship, bark, or other vessel, importing liquors liable to any duty or custom, by virtue of this act, to any port or place within this colony and dominion, shall make a true and just entry, upon oath, with the collector of the duties upon liquors, in the said port or place, of the burthen, contents, and lading of such ship, bark, or other vessel, with the particular marks and numbers of every cask therein, laden with liquors, to the best of his knowledge; and also where, and in what port, the same were laden or taken onboard, upon penalty of forfeiting one hundred pounds, current money.|
|VIII. Provided always, and it is hereby enacted and declared, That no person or persons whatsoever, shall be required to give an account, upon oath, of the true contents of any pipe or cask of wine imported directly from the place where the same was made; but that, upon every such importation of wine, the owners or importers thereof, shall have liberty to enter a pipe at one hundred gallons, and all lesser cask after the same proportion; any thing in this act contained to the contrary, or seeming to the contrary, notwithstanding.||Wines, how entered.|
|IX. And for the better encouragement of all persons whatsoever, to make due entry and paiment of the several impositions, duties, or customs, laid upon liquors, by virtue of this act.||Encouragement to pay duties.|
|X. Be it further enacted, That in consideration of filling and leakage, every collector of the said impositions, duties or customs, shall be and is hereby authorized||Allowance for leakage.|
|and required, to abate and allow to such person or persons as shall enter liquors, and pay the duties for the same, twenty gallons in every hundred. And if any person or persons whatsoever, shall wittingly or willingly make a false entry, and be convicted of the same, such person or persons shall forfeit and pay one hundred pounds, current money.||False entry.|
|XI. And be it further enacted, That the collectors of the duties or customs upon liquors, and their deputies, be authorized and impowered, and they, and every of them, are hereby authorized and impowered, to go and enter on board any ship or other vessel, and from thence to bring on shore, any liquors liable to a duty or custom, by virtue of this act, if the duty or custom be not paid or agreed for, within ten days after the first entry of the said ship or vessel; and likewise to stay and remain on board the said ship or vessel, until all such liquors be discharged and delivered out of the same.||Power of collectors, where duties are not paid.|
|XII. And be it further enacted, That if any collector or collectors of the duties upon liquors, or any other person or persons deputed and appointed, by or under them, or any of them, or any other authority whatsoever, shall directly or indirectly take or receive any bribe, recompence, or reward, in any kind whatsoever; or shall connive at any false entry of any liquors liable to a duty or custom, by virtue of this act, by means whereof, the duties or customs shall be defrauded; the person or persons therein offending shall forfeit and pay the sum of one hundred pounds, current money, and be forever afterwards disabled in his said office, and rendred incapable of holding any office or emploiment, relating to the customs, within this colony and dominion: And the person or persons giving or paying any such bribe, reward, or recompence, shall forfeit and pay one hundred pounds, current money.|| Bribery in officers. |
Penalty for paying.
|XIII. Provided always, and it is hereby further enacted, That if the importer of any liquors, of which the duties and customs, according to this act shall be paid, shall, within three months after the importation thereof into this colony and dominion, be desirous to export the same, or part thereof; in such case, the said importers shall give a particular account of the contents, casks, marks, and numbers of the liquors he intends to export, to the collector, with whom, at their importation, they were entred; and shall subscribe the||Drawback.|
|same, and declare, upon oath, that the duty or custom for the liquors he desires to export, were, at the entry, duly answered and paid, according to this act; and that the said liquors shall be directly carried out of this dominion, and not sold, delivered, or put on shore within the same: And then it shall be lawful for the said collector, and he is hereby required and enjoined, to allow the said importer the whole duty or custom paid for the said liquors so to be exported; any thing in this act contained to the contrary, in any wise, notwithstanding.||Oath of exporter.|
|XIV. And for an encouragement to import money into this colony and dominion.|
|XV. Be it further enacted, That whatsoever person or persons shall pay any of the impositions, duties, or customs, accruing due, by virtue of this act, in good and lawful money of his or their own importation into this colony and dominion, to be proved by the oath of the party paying the same; such person or persons shall have an abatement and allowance of fifteen per cent. in all duties so paid and satisfied; and every collector of the said duties is hereby authorized and required to make allowance accordingly.||Encouragement to import money.|
|XVI. And be it further enacted, That the several forfeitures and penalties which shall or may arise, by virtue of this act, shall be divided into three equal parts; one third whereof, shall be to our sovereign lord the king, his heirs and successors, for and towards the better support of this government, and the contingent charges thereof; one third part to the governor of this colony and dominion, for the time being, to and for his own proper use and behoof; and the other third part to him or them that will inform or sue for the same: To be recovered, with costs, by action of debt, bill, plaint, or information, in any court of record within this colony and dominion; wherein no essoin, protection, or wager of law, shall be allowed.||Forfeitures how appropriated.|
|XVII. And be it further enacted, That the governor or commander in chief of this colony, for the time being, with the advice of the council, shall be, and is hereby impowered, from time to time, and at all times hereafter, to nominate, constitute, and appoint, such and so many collectors of the duties laid by this act upon liquors, as also such salaries, not exceeding six in|| Collectors, how appointed. |
|the hundred, for collecting the said duties, as to him shall seem best.|
|XVIII. And be it further enacted, That all and every such sum and sums of money which shall be raised, collected, and levied, by the said duties, the necessary charges of collecting, managing, and accounting for the same always excepted, shall, from time to time, be accounted for, and paid by the respective collectors thereof, to the treasurer of Virginia, for the time being, upon oath; which oath, the said treasurer shall be accounted for, to the general assembly of this colony, upon oath. And that all and every such sum and sums of money which shall be raised, collected, and levied, by the said duties of three pence upon every gallon of wine, rum, brandy, and other distilled spirits, and of one penny upon every gallon of cider, beer, and ale, over and above the necessary charges aforesaid, are and shall be appropriated, issued, applied, and disposed of, to such use or uses, as the general assembly, from time to time, shall think fit to direct, for lessening the levy by the poll, or defraying any public expence, and to and for no other use whatsoever.||Collectors and treasurer to account on oath.|
|XIX. And, forasmuch as the present revenue of the college of William and Mary, is not sufficient to maintain the full number of masters or professors required by the charter of the said college, and thereby the progress of learning hath been much obstructed, and the will of the roial founders in great measure frustrated,|
|XX. Be it further enacted, by the authority aforesaid, That the sum of two hundred pounds per annum, out of the said duty of one penny upon every gallon of wine, rum, brandy, and other distilled spirits, by this act imposed, as aforesaid, is and shall be appropriated for the relief of the said college; and for and during the said term of twenty-one years, shall be paid by the said treasurer, half-yearly, in equal portions, unto the surviving trustees of the said college, until the same shall be transferred to the president and masters; and from and after such transfer, then to the president and masters, and their successors, for and towards the maintaining and supporting the full number of masters and professors, which are to reside in the said college. −− And if, at any time, there shall be no trustee of the said college, residing in this country, before such||Part of duty payable to trustees of college.|
|transfer shall be made, then the said sum of two hundred pounds shall be, in manner aforesaid, paid to the visitors and governors of the said college, or to such person as they shall appoint to receive the same: And after the said sum of two hundred pounds per annum shall be so satisfied, then the overplus of all monies arising from the said duty, shall be applied to such other use or uses, as the general assembly shall think fit to direct, as aforesaid.|| |
Overplus, how appropriated.
|XXI. And be it further enacted, by the authority aforesaid, That it shall and may be lawful, to and for all and every the collector or collectors of the duties laid by this act, to enter into any house, warehouse, or storehouse, in the day time; or if occasion be, by warrant under the hand of a justice of the peace, and in company with a constable, to break open, in the day time, any house, warehouse, or storehouse, to search for, seize, and carry away, any liquors on which a duty is laid by this act, and for which the said duty shall not have been paid, according to the directions herein given. And if any such collector or constable shall be sued or molested, for any thing done, in execution of the powers hereby given them, such collector or constable shall and may plead the general issue, and give this act in evidence; of which, the court where such suit shall be brought, shall allow: And if, in such suit the plaintiff shall be nonsuited, or a judgment shall pass against him, the defendant shall recover double costs.|| Houses may be broken, where duties are not paid.|
|XXII. And be it further enacted, by the authority aforesaid, That all and every master or commander of any ship, boat, or other vessel whatsoever, that from and after the commencement of this act, shall transport or carry any liquors, on which a duty is laid by this act, from one district to another, within this colony, shall, before he depart out of the district wherein such liquors shall be laden or taken on board, make oath, before the collector of the duties in the said district, to the true quantity of the liquors so on board, to be transported; and that he will not take, or suffer to be taken, on board the said ship, boat, or other vessel, any more liquors, on which a duty is laid, by this act; and shall also take a certificate from the said collector, of the quantity of liquors then on board, and that such oath hath been made thereto. And if the master of any ship, boat, or other vessel, shall after the commencement||Liquors, how transported from one district to another.|
|of this act, deliver or put on shore in any other district, or transport from one district to another, any such liquors, without having made such oath, and obtained such certificate as is herein above directed, such master shall forfeit the value of such liquors: To be recovered and disposed of in such manner, as the penalties and forfeitures herein before mentioned, are directed to be.|
| CHAP. II.
An Act appointing a Treasurer.
|[From edit 1733, p. 355.]|
|I. BE it enacted, by the Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and it is hereby enacted, That John Holloway, Esquire, shall be and is hereby nominated, constituted, and appointed treasurer of the revenues arising by one act of assembly, passed this session, intituled, An Act for laying a duty on Liquors; and the said treasurer is hereby authorized, impowered, and required, to demand, receive, and take, of and from every collector and collectors, all and every the sum and sums of money, arising by force of the before recited act of assembly: and the said John Holloway is authorized and required to keep and retain all such money in his own custody and possession, until he shall dispose of the same, in such manner, and by such warrant, and for such uses, intents, and purposes, and no other, as are limited, directed, and appointed, in the said act.|| |
John Holloway appointed treasurer.
|II. And be it further enacted, by the authority aforesaid, and it is hereby enacted, That the salary of four per cent. shall be allowed and paid to the said treasurer, out of all and every sum and sums of money by him received and accounted for, to the general assembly, according to the directions of the said act.||His salary.|
|III. And be it further enacted, That the said John Holloway, before his entry and admission into the said office of treasurer, and before his taking upon him to execute and manage the same, shall give bond in the secretary's office, with good and sufficient security, in the sum of four thousand pounds, current money, paiable to his majesty, his heirs, and successors, for the true and just performance and discharge of the aforesaid office||To give bond and security.|
|and place of treasurer, according to the true intent and meaning of the meaning of the afore-recited act of assembly.|
|IV. Provided always, That in case of the death, departure out of the colony, or other legal disability of the treasurer hereby appointed, that then it shall and may be lawful, to and for the honourable the lieutenant-governor, or the governor and commander in chief, for the time being, with the advice of his Majesty's council, to appoint and constitute such other person as he shall think fit, to execute the said office of treasurer, according to the several rules and directions in this act expressed, who shall hold, have, and enjoy, the said office of treasurer, with all and singular the rights and profits to the said office belonging, until the then next session of assembly; giving such bond and security as herein before is directed; any thing in this, or any other act, to the contrary, in any wise, notwithstanding.||Vacancy, how supplied.|
|CHAP. III.||[From edit. 1733, p. 356.]|
| I. WHEREAS heretofore, by reason of the scarcity of money in this
colony, it was thought expedient that all persons who should be taken in execution, for the
satisfying any debt or damages recovered against them in any of the King's courts within this
colony, might be at liberty to redeem their bodies, and to discharge such debt or damages, by
tendering and delivering sufficient of their goods and chattels: And that all creditors should be
bound to accept the same, according to a reasonable valuation thereof, to be made by indifferent
men, to be chosen and appointed for that purpose: And it hath also been judged reasonable that
when the goods and chattels of any debtor should be taken, by virtue of any writ of execution,
for the satisfying any judgment, the plaintiff should accept the same, according to the like
valuation. And for that end, one act of assembly, in the fourth year of the reign of the late
Queen Anne, was made, intituled, An act
[The acts referred to are actually 4 Anne, ch. 37, & ch. 51.]
| Preamble. |
4 Anne, ch. 38.
|directing the manner of levying Executions, and for relief of poor Prisoners for debt: But by long experience thereof, it hath been found, that the indulgence thereby intended to debtors, hath been grossly abused, and sundry dishonest people taking advantage of the defects of the said act, have frequently tendred only such part of their goods and chattels, as were of little value, and of no use to themselves or others; and the partiality of appraisers hath also often concurred to promote such foul practices, and many creditors have rather chosen to lose their debts, than be obliged to pay the overplus of an unjust and excessive appraisement: which abuses daily more and more encreasing, to the great dishonour of the good people of this colony, and to the discouragement of trade, and the decrease of personal credit among the people here:|
|II. Be it enacted by the Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That the said act of assembly, made in the fourth year of the reign of her said late Majesty Queen Anne, intituled, An act directing the manner of levying Executions; and for relief of poor Prisoners for debt; and also one other act made in the same year, to explain part of the said act, and every clause, matter, or thing, therein contained, be and are hereby repealed, and utterly made void, to all intents and purposes.|| Chap. 38, 1705, repealed.|
[Actually, Chap. 37.]
Also ch. 52, 1705.
[Actually, ch. 51.]
|III. And forasmuch, as by the common law of England, and divers acts of parliament, which are binding upon the people of this colony, all persons recovering any debt, damages, or costs, by the judgment of any court of record, may, at their election, prosecute writs of fieri facias, elegit, and capias ad satisfaciendum, within the year, for the taking the body, goods, or lands, of the person or persons against whom such judgment is obtained, to satisfy the same: To the end, the said several writs issuing out of any of the courts of record within this dominion, and the manner of executing and returning the same, may be uniform throughout the whole country; and the mischiefs which may arise from the incorrect forms, and insufficient returns of such writs, may be prevented.||Fieri facias, elegit, and capias satisfaciendum, how executed and returned.|
|IV. Be it enacted and declared, by the authority aforesaid, That the several writs aforesaid, shall be hereafter issued in the King's name, and bear teste, by the||Teste and return.|
|clerk of the court out of which the same shall issue, and be made returnable in the general court, to some day in the next general court; and in the county courts, to the next succeeding court; so that there be always at least fifteen days between the teste and return, according to the respective forms hereafter mentioned, mutatis, mutandis.|
|The Form of a Fierie Facias, in Debt.|
|GEORGE, by the grace of God, of Great-Britain, France, and Ireland, king, defender of the faith, &c. to the sheriff of county, greeting: −− We command you, that of the goods and chattels of A. B. late in your bailiwick, you cause to be made the sum of which C. D. lately in our general court, hath recovered against him, for debt; also the sum of which to the said C. D. in the same court, were adjudged for his damages; as well by reason of detaining the said debt, as for his costs in that suit expended, whereof he is convicted, as appears to us, of record: And that you have the said before the justices of our said court, the day of to render to the said C. D. of the debt and damages aforesaid; and that you have there then this writ. Witness, &c.|
Form of fieri facias, in debt.
|A Fieri Facias, in Case upon a Promise.|
|As before, unto for his damages which he sustained, as well by reason of his not performing a certain promise and assumption to the said C. D. by the said A. B. lately made, as for his costs, by him about his suit in this behalf expended, &c.||in case;|
|As before, unto for damages, as well by occasion of a certain trespass by the said A. B. to the said C. D. offered, as for costs.||Trespass.|
|(If for the Defendant, say)|
|For his costs about his defence in a certain action, at the suit of the said||For the defendant.|
|As before, unto for damage, &c. by occasion of the breach of a certain covenant between the said A. B. and C. D. lately made.||Covenant.|
|The Form of a Writ of Elegit.|
|GEORGE, &c. greeting, &c. Whereas A. B. at our general court, before our justices held, &c. hath recovered against C. D. which to the said plaintiff was adjudged for a certain debt or damages as before And the said A. B. by the statute in that case made and provided, hath chosen to have delivered to him all the goods and chattels of the said C. D. besides the oxen and beasts of his plough, and also a moiety of all his lands and tenements in your bailiwick; to have and to hold, the goods and chattels aforesaid, as his own proper goods, and the said moiety as his freehold, to him and his assigns, until he shall have levied thereof, the debt and damages aforesaid: Therefore we command you that you cause to be delivered all the goods and chattels of the said C. D. besides the oxen and beasts of his plough, and also a moiety of all his lands and tenements in your bailiwick, whereof he, at the day of obtaining the said judgment, was seized, or at any time afterwards, by reasonable price and extent; to have and to hold, the said goods and chattels, [to him the said A. B. as his own proper goods and chattels,] and the said moiety, as his freehold, to him and his assigns, according to the form of the statute aforesaid, until he shall have levied thereof, the debt and damages aforesaid. And that you certify our said justices under your own seal, and the seals of those by whose oaths you should make this extent and appraisement, how you execute this writ the day of And have then there this writ, &c.|
|The Form of a Capias ad Satisfaciendum.|
|GEORGE, &c. greeting, &c. We command you, that you take A. B. late of, &c. if he be found within your bailiwick, and him safely keep, so that you have his body before our justices of our general court, the day of to satisfy C. D. the sum of which the said C. D. hath recovered against him for debt, &c.|
Capias ad satisfaciendum.
|And in Case, Trespass, and Covenant, as before, in the Fieri Frecias.|
|Which said writs so issued, shall be executed by the sheriff, or other officer, or minister, to whom the same shall be directed; and shall be returned, according to the respective forms hereafter mentioned.||To be executed by sheriff.|
|The Return of a Fierie Facias.|
|BY virtue of this writ, to me directed, I have caused to be made the within mentioned sum of of the goods and chattels of the within named A. B. which said sum of before the justices within mentioned, at the day and place within contained, I have ready, as that writ requires.|
Form of return.
|THE within named A. B. hath no goods or chattels in my bailiwick, whereof I can make the sum within mentioned.|
|BY virtue, &c. I have caused to be made, of the goods and chattels of the within named A. B. the sum of which I have ready to render to the within named C. D. in part of the debt and damages within mentioned. And I do further certify, that the said A. B. hath no more goods and chattels within my bailiwick, whereof at present I can make the residue of the said debt and damages, as by the said writ is required.|
Executed in part.
|The Return of a Writ of Elegit.|
|Sc. Inquisition indented, taken at in the county aforesaid, the day of in the year of our Lord before me, E. F. gent. sheriff of the county aforesaid, by virtue of a writ of our lord the king, to me directed, and to this inquisition annexed, and by the oath of G. H. I. K. &c. good and lawful men of my balliwic, who being charged and sworn, upon their oaths, do say, that A. B. in the said writ to this inquisition annexed named, the day of||Return of elegit.|
|the caption of this inquisition was possessed of the goods and chattels following, as of his own proper goods, viz. of the price of which I, the said sheriff, have caused to be delivered to the said C. D. to hold to him, as his own proper goods and chattels, in part of satisfaction of his debt and damages aforesaid, in the said writ mentioned: And further, the said jurors, upon their oaths, do say, that the said A. B. at the time of rendring the judgment aforesaid, was seized in his demain, as of fee of and in (naming the houses and lands) with the appurtenances, of the clear annual value in all the issues, beyond reprises, of pounds, acres of which, or thereabouts, are a true and equal moiety of all and singular the lands, tenements, and hereditaments whatsoever, in the county aforesaid, of the said A. B. which said moiety, I the said sheriff, the day aforesaid, to C. D. in the said writ named, at a reasonable extent, have delivered; to hold to him and his assigns, as his freehold, according to the form of the statute in that case made and provided, until he shall have levied the residue of the debt and damages aforesaid, as the writ aforesaid requires: And further, the said jurors, upon their oaths do say, that the said A. B. at the time of giving the judgment aforesaid, had not, nor at the day of taking this inquisition, hath any other or more goods or chattels, lands or tenements, in the county aforesaid, to the knowledge of the jurors aforesaid, In testimony whereof, as well I, the said sheriff, as the jurors aforesaid, to this inquisition, have severally put our seals, the day, year, and place, above mentioned.|
|The Return of a Capias ad Satisfaciendum.|
|BY virtue of this writ, to me directed, I have taken the within named A. B. whose body, before the justices within named, at the day and place within contained, I have, ready to satisfy C. D. of the debt and damages within mentioned, as within to me is commanded.|
Return of capias ad satisfaciendum.
|The within named [A. B.] is not found in my bailiwic.||Non est inventus.|
|V. And whereas, it hath been heretofore much doubted and questioned in England, before the statute made in the twenty-first year of the late king James the first, if any person being in prison, charged in execution, by reason of any judgment given against him, should happen to die in execution, whether the party, at whose suit, or to whom such person stood charged in execution at the time of his death, were not forever concluded and barr'd to have execution of the lands and goods of such person so dying? And lest any person of sufficiency in real and personal estate, intending to deceive others of their just debts for which they stand charged in execution, should obstinately and wilfully chuse rather to live and die in prison, than to make any satisfaction to their creditors.||(Stat. 21. Ja. 1, c. 24)|
|VI. Be it declared and enacted, by the authority aforesaid, That the party or parties, at whose suit, or to whom any person shall stand charge in execution, for any debt or damages recovered, his or their executors or administrators may, after the death of the said person so charged, and dying in execution, lawfully sue forth and have new execution against the lands and tenements, goods and chattels, or any of them, of the person so deceased, in such manner and form, to all intents and purposes, as he or they, or any of them, might have had by the laws and statutes of the Realm of England, if such person so deceased had never been taken or charged in execution.||Debt or dying in execution, creditor may have new execution against his estate.|
|VII. Provided always, and be it enacted and declared, That this act shall not extend to give liberty to any person or persons, their executors or administrators, at whose suit or suits any such party shall be in execution, and die in execution, to have or take any new execution against any the lands, tenements, or hereditaments of such party dying in execution, which shall, at any time after the said judgment or judgments, be by him sold, bona fide, for the paiment of any of his creditors; and the money which shall be paid for the lands so sold, either paid or secured to be paid, to any of his creditors, with their privity and consent, in discharge of his or their debts, or some part thereof.||But not to affect lands bona fide sold by debtors.|
|VIII. And for removing all scruples, which may be entertained among clerks, concerning the issue of executions,|
|IX. Be it further enacted and declared, That when any writ of execution shall issue, and the party at whose suit the same is issued, shall afterwards desire to take out another writ of execution, at his own proper costs and charges, the clerk may issue the same, if the first writ be not returned and executed. And if, upon a capias ad satisfaciendum, the sheriff shall return, that the defendant is not found, the clerk may issue a (a) fieri facias: And if, upon a fieri facias, shall return, that the party hath no goods, or, that only part of the debt is levied; in that case it shall be lawful to issue (b) a capias ad satisfaciendum, upon the same judgment. And so, where part of a debt shall be levied upon an elegit (c) a new elegit shall issue for the residue. −− And where nihil shall be returned upon an writ of elegit, a capias ad satisfaciendum, or (d) fieri facias may issue; and so vice versa. (e) And where one judgment is obtained against several defendants, execution thereon shall issue, (f) as if it were against one defendant, and not otherwise.|| A new execution may issue, if the former be not returned
Judgment against several executions as against one.
|X. And (g) whereas, by the common law, if a creditor should take execution upon any judgment, or statute, and the debtors shall before make alienation of part of his lands, and such land shall be omitted out of the extent, the same execution may be avoided by audita quœrela, and thereby the party extending, may lose his costs, and be delaied of his just debt; and so again, upon any new extent, toties quoties. And if any|| Audita quærela. |
|Notes to Edition 1733.|
|(a) This was a question at Common Law, 1 Roll. Abr. 9 904. Hob. 57.|
|(b) This is agreeable to the Common Law, ibid.|
|(c) This might be at Common Law, Hob. 57.|
|(d) This is questioned at Common Law, Roll. Abr. 904. Hob. 57. contra.|
|(e) The meaning of these words must be, that were Nihil is returned upon a Fieri Facias, an Elegit may issue; or where Fieri Feci for part is returned, a Fieri Facias may issue for the residue; and this might be done at the Common Law, according to several precedents, Vid. Brownl. Brev. Judic. 55 Thesaurus Brev. 115. Officina Brev. 93.|
|(f) The meaning of this, is, that were there are several defendants, one sort of execution shall issue against them; and not a Capias against one, and a Fieri Facias against another.|
|(g) This clause is not so clearly worded as it ought to have been, but the meaning of it is, when part of the Lands aliened are extended, and other part omitted, the execution shall not be avoided for that reason. Vide the Statute 16 & 17 Car. c. 5.|
|one acre or parcel of land happen to descend to an infant, the whole execution must be deferred, 'till the full age of such infant; and if afterwards, other part of the land or tenements liable to such debt, shall descend to another infant, then further delay will happen during that infancy also. And these inconveniencies and delays being remedied in England, by one act of parliament made in the sixteenth year of the reign of the late king Charles the second, which is not binding upon the subjects here:|| |
Stat. 16 & 17, Car. 2, c. 2.
|XI. Be it enacted and declared, by the authority aforesaid, That when any judgment, statute, or recognizance shall be extended, the same shall not be avoided or delaied, by occasion that any part of the lands or tenements extendible, are or shall be omitted out of such extent.||Extent not avoided, by omission of part of the lands.|
|XII. Saving always to the party and parties, whose lands shall be extended, his and their heirs, executors, and assigns, his and their remedy, for contribution against such person and persons, whose lands are or shall be omitted out of such extent, from time to time.||Saving remedy for contribution.|
|XIII. Provided always, That this act, or any thing therein contained, shall not be construed to give any extent or contribution against any heir within the age of one and twenty years, during such minority of such heir, for or in respect of any lands to such heir descended, farther or otherwise than might have been made before the making this act.||No extent or contribution against infant heir.|
|XIV. And be it further enacted, (a) That no writ of fieri facias, or other writ of execution, shall bind the property of the goods against which such writ of execution is sued forth, but from the time that such writ shall be delivered to the sheriff, under-sheriff, or coroners, to be executed: And for the better manifestation of the said time, the sheriff, under-sheriff, and coroners, their deputies and agents shall, upon the receipt of any such writ, (without fee for doing the same) endorse upon the back thereof, the day of the month, and year, when||Property bound, for delivery of writ.|
|Notes to Edition 1733.|
|(a) This is a clause of the Statutes against frauds and perjuries, 29 Car. 2, chap. 3, and the design of it was to declare, when several persons have executions at the same time, against the same person, that which is first delivered, shall be first served: For it seems, at Common Law, they were to take place according to the teste, Comberb. 429, but now it is otherwise.|
|he or they received the same: And if two or more writs shall be delivered against the same person in the same day, that which was first delivered, shall be satisfied first. (a)||Officer to endorse time of delivery.|
|XV. And be it further enacted, by the authority aforesaid, That when any sheriff, or other officer, or minister, shall take the goods or chattels of any person whatsoever, by virtue of any writ of fieri facias, and the owner of such goods or chattels shall not, within three days after such taking, satisfy the party suing out such writ, his debt, damages, and costs, such sheriff, or other officer, shall and may lawfully sell, by auction, the goods and chattels so taken, or so much thereof, as shall be sufficient to satisfy the judgment, for the best price that can be gotten for the same: But shall give notice of the time and place appointed for such sale, at the church or chapel of the parish, where such goods shall be taken in execution, by setting up a note thereof, before the service begins, in some convenient or usual place near such church or chapel, and by publishing the same in the church-yard immediately after divine service, upon the next Sunday after such taking: Which said sale shall be made the third day after such notice given, as aforesaid, and not sooner.|| Goods taken on fieri facias, how sold. |
Notice of time and place of sale.
Sale, when to be made.
|XVI. Provided always, That if the person, whose goods or chattels shall be taken in execution, as aforesaid, shall give sufficient security to the sheriff, or other officer, or minister, serving the same, to have the same goods and chattels forth-coming at the time of sale, it shall and may be lawful to and for such sheriff or officer to accept such security; and thereupon to suffer the said goods and chattels to remain in the possession, and at the risque of such debtor, until the time aforesaid.||Debtor may retain goods, on giving security.|
|XVII. Provided nevertheless, If the person, whose goods and chattels shall be taken in execution, shall, at the time appointed for such sale, tender to the sheriff, or other officer, the debt, damages, and costs, for which his goods and chattels shall be so taken, such sheriff or officer shall accept the same, and restore the said goods to the owner.||Goods to be restored on tender of debt.|
|Notes to Edition 1733.|
|(a) This was a question upon the Statute, but so determined, Carthew 420.|
|XVIII. And if any sheriff, or other officer, or minister, shall make return upon any writ of fieri facias, that ht hath levied the debt, damages, and costs, as in such writ is required, or any part thereof, and shall not immediately pay the same to the party to whom the same is paiable, or his attorney; the clerk of the court, out of which such writ shall issue, is hereby required, at the request of the party, to issue a scire facias, against such sheriff, or other officer, to have execution against him for the money so by him levied.||Scire facias against sheriff, not paying money made by execution.|
|XIX. And if the goods taken by any sheriff, or other officer, or minister, as aforesaid, or any part thereof, shall remain in his hands for want of buyers, he shall make return accordingly; and thereupon the writ of veditioni exponas shall issue to such sheriff, or other officer, directed according to the form following:||Venditioni exponas.|
|GEORGE, &c. to the sheriff of county, greeting. We command you, that you expose to sale, those goods and chattels of A. B. to the value of which, according to our command, you have taken into your hands, and which you detain for want of buyers, as you have certified to our justices of our general Court, to satisfy C. D. the sum of whereof in our said court he hath recovered execution against the said A. B. by virtue of a judgment in the said court; and that you have, &c.|
|and thereupon such sheriff, or other officer, shall dispose of such goods and chattels in any manner, either for ready money, or upon credit, as he, and the party prosecuting such writ, shall think best.||Goods, how sold.|
|XX. And whereas, in and by one clause in the act of assembly, For establishing county courts, and for regulating and settling the proceedings therein, it is enacted, that when a judgment shall be obtained against any person in the county court, in any transitory action, and such person shall remove himself out of that county, so as execution cannot thereupon be served upon him; it shall and may be lawful for the clerk of the court, where such judgment was granted, to make out, and for any justice of the peace of the quorum to sign, an execution against the body of the said defendant, and to direct the same to the sheriff of any county within this colony, who is by the said act impowered and directed|| |
Recital of a clause in 9 Anne, c. 11.
|to serve the same, in like manner, as if execution had issued from the court of the county where such defendant shall be found. And it being equally just and reasonable, that the plaintiff or creditor should have remedy, as well against the goods and chattels, as against the body of such defendant or debtor.|
|XXI. Be it therefore enacted, That the said clause in the before recited act, be from henceforth repealed; and that where judgment, in any action shall be obtained in any inferior court of record within this dominion, for any debt or damages, and the person against whom such judgment shall be obtained, shall remove himself and his effects out of the limits of the jurisdiction of such court, it shall and may be lawful for the clerk of such court, where such judgment shall be given, at the request of the party for whom the same was rendered, to issue any writ of fieri facias or capias ad satisfaciendum, in the form, and under the teste herein before prescribed; and to direct the same to the sheriff of any county within this colony, where the defendant or debtor, or his goods shall be found: which said sheriff, or other officer, to whom the same shall be directed, is hereby impowered and required to serve and execute the same, and shall make return thereof, to the court where the judgment was given, in the same manner and form as is herein before prescribed and directed; any thing in the before-recited act, or any other act contained, or any law, usage, or custom, to the contrary thereof, notwithstanding.|| Sect. 13, of c. 11,
[Actually Sect. 23.]
Executions against persons removing, themselves and their effects.
|XXII. And whereas, by reason of the unwholesomeness of most prisons in this colony, certain rules or bounds have been laid out and appointed, wherein prisoners taken or charged in execution, may be permitted to walk for their healths;|
|XXIII. Be it enacted, That if any person or persons taken or charged in execution shall enter into bond, with good and sufficient securities, under a reasonable penalty, upon condition, that he or they shall not depart, or go out of the rules or bounds of the prison to which he or they shall be committed, it shall and may be lawful for the sheriff, or other officer, in whose custody such prisoner or prisoners shall be, to permit him or them to go out of the prison, and to return at his or their pleasure.||Prison bounds.|
|XXIV. And be it further enacted, by the authority aforesaid, That if any prisoner or prisoners taken or charged in execution, as aforesaid, shall make his or their escape from the prison to which he or they shall be committed; or, having the liberty of the rules or bounds of such prisons, shall escape, it shall and may be lawful, upon oath thereof in writing, to be made by one or more credible person or persons, before any one of the judges of that court where such judgment and execution were obtained, to and for such judge, before whom such oath shall be made, and such judge is hereby authorized and required from time to time to grant unto any person whatsoever who shall demand the same, one or more warrant or warrants, under his hand and seal, therein reciting the execution or executions with which such person or persons so escaping or going at large, stood charged: which said warrant or warrants shall be in force in all places whatsoever, within this colony and dominion; and shall be directed to all sherifs, maiors, bailifs, constables, and headboroughs therein; and thereby commanding them, and every of them, in their respective counties, cities, towns, and precincts, to seize and retake such person or persons so escaped or going at large; and such person or persons so retaken upon such warrant, forthwith to convey and commit to the prison where debtors are usually kept, in the county where such person or persons so escaped or going at large, shall be retaken; there to remain without bail or mainprize, or being thence, upon any account whatsoever, delivered or removed, until he, she, or they, shall have made full paiment or satisfaction to the respective plaintiff or plaintifs, creditor or creditors, in such execution or executions named, or until the judgment or judgments, on which such execution or executions was or were sued out against such person or persons, shall be reversed or discharged, by due course of law; except such person or persons, be charged with treason or felony, or any other crime, matter, or cause, for and on behalf of the king's majesty, his heirs and successors: And if he or she, for any such cause, be removed to any other goal or prison, he or she shall be in custody of such goal, charged with all the executions which he or she is or shall be charged, in the goal from whence he or she shall be removed. And every officer, after delivery of such prisoner so retaken, together|| (See 1 Anne c 6, & 5 Anne, c 9.) |
Escape warrant, how issued, executed and returned.
|with such warrant to the sheriff, shall take a note in writing, from such sheriff, testifying the receipt of such prisoner; which said sheriff is hereby required to receive such prisoner, and give such note; and shall make a return of such warrant to the court where the judgment was obtained; which shall be entred and file upon record. And if any such person or persons so retaken by warrant, as aforesaid, shall, at any time, make any escape out of the goal, to which he, she, or they, shall be so conveyed and committed, as aforesaid, the sheriff in whose custody he, she, or they, was or were, shall be liable to answer for such escape.|
|XXV. And whereas it is not reasonable or just, that by the practice or contrivance of any debtors, their creditors should be defrauded of their just debts; and nevertheless, it hath often so happened, that where several persons, having, by bonds or other specialties, bound themselves and their heirs, and afterwards died seized of and in messuages, lands, tenements, and hereditaments, have, to the defrauding of such their creditors, by their last wills and testaments, devised the same, or disposed thereof, in such manner, as such creditors have lost their said debts:||Fraudulent devises and conveyances.|
|XXVI. And whereas, by the laws now in force in this colony, it is in the power of heirs at law, to avoid the paiment of the just debts of their ancestors, by selling, aliening, or making over the lands, tenements, and hereditaments, descending to them, which are, by law, liable to pay such debts, before any process be issued out against them:||Alienations of heirs.|
|XXVI. For remedying of which mischiefs, one useful and beneficial act of parliament was made, for the relief of creditors, against fraudulent devises, in the third year of the reign of the late king William and queen Mary.|
|XXVIII. Be it therefore enacted, That the said act of parliament, for relief of creditors against fraudulent devises, be and is hereby declared to be in force within this colony and dominion.||Stat. 3, W. & M. c. 14, adopted.|
|XXIX. And for relief of insolvent debtors who shall be taken in execution, and to prevent the long imprisonment of unfortunate people, which can be no benefit, but may be rather a disadvantage to their creditors.|
|XXX. Be it enacted, by the authority aforesaid, That if any person or persons now are or hereafter shall be taken or charged in execution, and shall have remained in prison by the space of twenty days, it shall and may be lawful for any justice or justices of the peace of any county, city, town or liberty, within this colony, upon petition of such prisoner or prisoners, under his or their hands and seals, whereof notice shall be given to the person or persons, his or their executors, administrators, attorney, or agents, at whose suit such prisoner or prisoners shall be imprisoned, to require the sheriff, goaler, or keeper, of any prison, within their respective jurisdictions, to bring before the justices of the peace, at the court to be held next after the date of the said warrant, for such respective county, city, town, or liberty, the body of any person being in prison, as aforesaid, together with a list of the several executions, with which he, she, or they, is or are charged, in the several goals, as aforesaid: which warrant, every such sheriff, goaler, or keeper, is hereby commanded to obey. And such prisoner or prisoners coming before the said justices, shall, in open court, subscribe and deliver in a schedule of his whole estate; and make oath, and swear to the effect following, that is to say:||Insolvent debtors, how discharged.|
|I A. B. do, upon my corporal oath, in the presence of Almighty God, solemnly swear, profess, and declare, that the schedule now delivered, and by me subscribed, doth contain, to the best of my knowledge and remembrance, a full, just, true, and perfect account and discovery of all the estate, goods and effects, unto me any ways belonging, and such debts as are to me owing, or to any person in trust for me, and of all securities and contracts, whereby any money may hereafter become paiable, or any benefit or advantage accrue to me, or to my use, or to any other person or persons in trust for me: And that I, or any other person or persons in trust for me, have not land, money, stock, or any other estate, real or personal, in possession, reversion, or remainder, of the value of the debt or debts with which I am charged in execution: And that I have not directly or indirectly sold, lessened, or otherwise disposed of, in trust, or concealed, all or any part of my lands, money, goods, stock, debts, securities, contracts, or estate, whereby to secure the same,|
Oath of insolvent debtor.
|to receive or expect any profit or advantage thereof or to defraud or deceive any creditor or creditors to whom I am indebted, in any wise howsoever. −− So help me God.|
|Which said schedule, being so subscribed, in the presence of the justices in open court, as aforesaid, is to remain with the clerk of the court, for the better information of the creditors of such prisoners.||Schedule.|
|XXXI. And be it further enacted, by the authority aforesaid, That all the land, tenements, and hereditaments, which shall be contained in such schedule, for such use, interest, right, or title, as such prisoner or prisoners then shall have in the same, which he or she may lawfully depart withal; and also all goods and chattels whatsoever, in such schedule also contained, shall be vested in the sheriff of the county wherein such lands, tenements, hereditaments, goods, and chattels shall lie, or be found: And such sheriff is hereby authorized, impowered, and required, to sell and convey the same to any person or persons whatsoever, for the best price that can be got for the same: And the monies arising by such sale, shall be by such sheriff or officer paid to the person or persons whatsoever, for the best price that can be got for the same: And the monies arising by such sale, shall be by such sheriff or officer paid to the person or persons, at whose suit such prisoner or prisoners shall be imprisoned. Saving to every such prisoner, his or her necessary apparel, and utensils of trade.|| Eestate of, how vested, and to be disposed of. |
Apparel and tools excepted.
|XXXII. And after the delivering in such schedule, and taking such oath, as aforesaid, it shall and may be lawful for the justices of the said courts, or any four of them, by their warrant, to command the sheriff, goaler, or keeper, of any prison, forthwith to set at liberty such prisoner: which warrant shall be a sufficient discharge to such sheriff, goaler, or keeper, and shall indemnify him or them against any escape or escapes, or action or actions whatsoever, which shall or may be brought, commenced, or prosecuted, against him or them, by reason thereof. And if any such action shall be commenced against any sheriff, or other officer, for performing his duty, in pursuance of this act, such sheriff, or other officer, may plead the general issue, and give this act in evidence.|| Prisoner how discharged. |
|XXIII. Provided, That no person or persons shall have any benefit of this act, who shall be taken or charged in execution for more than the sum of ten pounds, current money, or two thousand pounds of tobacco, due to any one person.||Exception.|
|XXXIV. Provided also, That nothing in this act contained, shall extend, or be construed to extend, to discharge any person or persons of any debt, or sum of money, for which he or they shall be imprisoned: But is shall and may be lawful for the person or persons, at whose suit, he, she, or they, shall be so imprisoned, at any time afterwards, to sue forth a writ of scire facias, to have execution against any goods or chattels, which such prisoner or prisoners shall thereafter acquire.||Property afterwards acquired, liable to execution.|
|XXXV. And be it further enacted, by the authority aforesaid, That if at any time hereafter, any person, being taken or charged in execution, shall not be able to satisfy and pay his or her ordinary prison fees, such of the said fees as shall accrue for the first twenty days imprisonment, shall be discharged by the county: And the sheriff, or goaler, may demand and recover of the party or parties, at whose suit such insolvent person shall be imprisoned, all such fees as shall become due, after the expiration of the said twenty days, until the creditor shall agree to release such prisoner out of prison.||Prison fees of insolvents, how paid.|
|XXXVI. Provided nevertheless, That such insolvent prisoner shall be afterwards liable to the action of the creditor, to recover such fees; and such creditor shall and may, notwithstanding his consent to the releasing such prisoner, afterwards sue out a scire facias, to have a new execution against the lands and tenements, goods and chattels of such prisoner, in case he shall afterwards become possessed of any.||Insolvent liable for fees.|
|Pages 118-142||Pages 168-181|